Friday, May 11, 2007

Whitewash

The report is out. It is divided into two parts, one a memorandum by City Manager Patrick Baker, the other a memo by Police Chief Chalmers. Both use the adjective "typical" to describe the DPD's behavior in this case--all but begging a federal intervention.

A quick summary: Baker clings to the preposterous story that the April 4 lineup wasn't a lineup, but rather an attempt to identify witnesses--even though (a) Sgt. Gottlieb told Crystal Mangum that everyone she would see the police believed attended the party; and (b) the police made no good-faith effort to contact any of those identified as "witnesses."

Who's fault was it that it took so long for justice to be served? The defense attorneys. "In attempting to answer what I believe to be the penultimate question as to why justice took nearly thirteen months to arrive on the scene in this case, I would submit the answer rests primarily in the contrasting relationship between the defense team and the two prosecuting agencies in this matter.The working relationship between the Durham District Attorney’s office and the defense team during the first 10 months of this case was not conducive to an efficient and thorough review of the facts of this case. While I have seen media accounts suggesting that defense counsel made numerous attempts to present the District Attorney with their exculpatory evidence, no such attempt was made by defense counsel to present this information to the Durham Police Department despite numerous requests and opportunities to do so."

Of course, given that Nifong assumed personal command of the investigation as of March 24, 2006, why would the defense attorneys seek to go through anyone other than Nifong?

To Baker, this question is wrong-headed: he claims that what we all witnessed over the past 13 months was nothing more than the "typical relationship between the police and the prosecutor."

Chalmers: concedes that Linwood Wilson's role as DA investigator was unprecedented, but then contradicts himself (in the next sentence) by saying Wilson's behavior "would not be unusual."

Says throughout the case, the players offered a "wall of silence"--even though Mike Nifong said as early as March 27, 2006, that he was only interested in speaking to players willing to confess.

Says General Order 4077 (five filler photos per suspect) is an administrative guideline, which the DPD can ignore whenever they see fit to do so.

Items unaddressed by both Baker and Chalmers:

1.) Why did the DPD never, apparently, attempt to determine the identities of the other male DNA found on Mangum?

2.) Was the Gottlieb "straight-from-memory" report consistent with DPD policy?

3.) If the police were so interested in obtaining exculpatory evidence, why did they never interview the person who conducted the medical exam, Dr. Julie Manly?

4.) Why, on March 16, did Durham Police not tape record their initial interview with the accuser? That way, the debate over the wildly divergent descriptions she allegedly gave could have been easily settled.

5.) Why, after obtaining access to the captains’ email accounts on March 16, did the police not completed their examination of the captains’ emails before arrests were made in the case?

6.) When and how did the police clear Kim Roberts as a suspect for robbery, as Mangum repeatedly alleged in her early statements?

7.) If the goal of the April 4, 2006 lineup was to identify witnesses, why did the lineup not include the photos of the two non-lacrosse players that police knew attended the party but that Nifong had not described as suspects?

8.) Why did the DPD apparently learn from the media of Mangum's previous allegation of a three-man gang rape?

9.) Does the DPD believe that Ben Himan's affidavit in the March 23 non-testimonial order (suggesting that probable cause existed of a rape existed) was accurate? What evidence did the DPD have--then, or later--that the players used first-name aliases at the party? What justification did the police have to have avoid mentioning in the March 23 affidavit that the department had already done lineups with the lacrosse players’ photos; and had obtained descriptions of the possible attackers from Mangum; and in those lineups, the accuser couldn't identify any suspects?

10.) Why did the police NOT take a statement from Mangum on March 16, and instead wait nearly three additional weeks to do so?

11.) Why did police not ask Mangum any hard questions about discrepancies in her multiple statements?

12.) Why did Baker himself claim--falsely--that Mangum told the same basic story to all law enforcement officers in the case?

13.) How does Baker explain both Cpl. David Addison and spokesperson Kammie Michael giving misleading statements to the press about evidence in the case last March?

City Councilman Mike Woodard, quoted by the N&O before the report was released:

"I've come to the conclusion that having a third-party review of our process is actually a good idea . . . I think it removes any doubt about our department looking at its own processes and its own procedures. If we relied solely on the department's report, I think people would consider any findings of that report to be suspect, and there would be concerns about cover up and whitewash."

According to this report there were 6 previous attempts to identify suspects which yielded nothing. If that is correct then this 7th procedure was used strictly to frame. That is stunning. Is it correct?

If it is true the bastard Nifong should be hanged, drawn and quartered.

They blame the defense for not proving their innocences (Innocent unitl proven innocent is correct). What about interviewing Manly? Why would the defense speak when the time-line might get changed? I thought they would blame the whole thing on Nifong- but to blame it on the defense is crazy.

They are saying- if it wasn't for the 5th Amend. we would have the truth.

This is a report that more or less repeats- Nifong's why do you need lawyers if you didn't do anything wrong?

Hey, anyone who expected anything other than a whitewash is hopelessly naive.

The City is staring down the barrel of a humongous civil rights / wrongful prosecution lawsuit. The last thing they're going to do is issue a report that admits that the DPD screwed up.

In typical DPD fashion, however, they can't even do a whitewash correctly. Trying to blame the defendants and the defense attorneys for this disaster is unbelievably foolish, even by DPD standards. Look for the attorneys in the civil case to have a field day with that one.

The citizens of Durham should be embarassed that those whose salary they pay to keep order are so intent on sweeping this whole thing under the rug.

When this one is over, and all those on the Durham payroll have long since gone, it will be those very taxpayers on the hook for huge damages, not just to the 3 indicted players, but to all of those players who were implicated of wrongdoing. The litigation traid which is coming down the track is going to be very expensive and embarassing for the city government.

The report is sadly what we all were expected. But could we really expect individuals who staked so much on the wrong pony to come forward and say, "We did something wrong and are willing to accept the financial consequnces of our actions."?

This report really is an outrage, and as far as I am concerned, it rises to the level of obstruction of justice. It is an attempt by the city government to lie about obvious police and prosecutorial misconduct.

DPD didn't exactly rise to the defense of Nifong. They only gave him a half-hearted defense against charges he stepped out of his role as DA to run the investigation. There's not enough material in the report to cover one ass, much less two. If Nifong was looking for comfort in this report, I don't think he gets it.

There is a critical section in there about how the defense attorneys did not present their exculpatory evidence to the DPD "despite numerous requests and opportunities to do so."

Is there any documentation of such numerous requests? It appears that the DPD is attempting to set this up as a defense line against impending litigation.

Of course, as Prof KC notes: once the prosecutors take over the case, and particularly the investigation, the point of contact become the DA's office, not the police. Communications are attorney-to-attorney.

Just when you think you've heard the ultimate in strange stories about this case...this may prove to be the most fantastic of the lies: it's the defense attorneys' fault!! I can't wait to hear what Joe Cheshire has to say about this report!!

Lies, lies and more lies--when will it end. I want to see Gottlieb in an orange jumpsuit next to Mikey in his!!

Does the City not have any competent lawyers reading this stuff before it's published???? Or are they so ignorant they cannot see that this just increases civil liability? Oh, they were are AAAF graduates and hires, too... I see.

During the 4/4 lineup, why did Gottlieb ask Crystal if Collin Finnerty had strangled her? Crystal did not say anything about being strangled by anyone she saw during the lineup. Gottlieb just asks her out of the blue.

The nonsense that they were using pictures of the team to determine if she had been on an amnesic drug or not; ie if she could point to anyone her "memory was intact" makes you wonder if Nifong helped them write this.(They knew she was unreliable) If cops/DA remotely beleived that a rape had occurred to someone incoherent and did not demand urine and blood tox screen means they did not beleive her during the first week.

What'll you bet that the Herald Sun lauds the report as comprehensive and thorough? If this was a TV show, no one would watch it because it would be unbelievable.BTW, I just filled out my Duke parent survey. I responded to the many questions fairly positively until I got to the end. The open ended question was: what has disappointed you about the university? (bingo!) I won't print the entire 300+ words but suffice it to say, I blasted them for still employing the 88 professors, the lack of support for the 3 boys, the committees, etc. I named names, too!

I'd like to hear what Mr. Baker would say if asked what "penultimate" means. I'd bet that's not a word he often uses.

I think the memorandum and report were written by a lawyer or lawyers (more likely) with substantial knowledge of criminal procedure and civil rights liability of police departments. They have figured out what superficially is plausible, so long as the officers present a united front.

The report is accurate in saying that it is not unusual for officers to seek legal advice from prosecutors during a criminal investigation. By simply giving advice, prosecutors do not necessarily step out of their traditional roles so as to incur civil liability. But doing so involves a risk, part of which is that the police will dump on the prosecutor if things don't turn out right.

The unanswered questions posed by Dr. Johnson are all very good ones. Only the taking of depositions will test whether officers can stick to this story, and present a united front in doing so, and the extent to which Nifong and Wilson may return fire, with their own versions.

Frankly, if I had been involved, as a prosecutor, in this horrendous treatment of the defendants, my desire to save my skin would be tempered substantially by shame at what I'd done.

If the DPD supposedly couldn't get exculpatory information from the attorneys, why didn't they just get it from the newspaper? Are they saying that they got all their information from the Herald-Sun because they didn't have 35 cents for the News & Observer?

Did Patrick Baker really expect anyone to be satisfied with that whitewash?

He's almost taunting..."let the civil suits begin!"

I especialy liked the line "It is the standard practice of the Durham Police Deartment to not release criminal investigative files for a variety of reasons"...such as covering our a$$es. They must cut and paste this into every report they release.

I guess the DPD is the only person in North Carolina that did not see Reade's alibi when it was released to the media.

I guess no one in Durham saw Reade on the video camera at the ATM.

Wasn't it Kirk Osborn (May God rest his soul) that asked for a fast trial (something that is a constitutional right)? If Kirk asked for a speedy trial, how exactly did the Defense Attorney's delay things?

Did the DPD not read the numerous Motions to dismiss in which blatant exculpatory evidence was presented? Why didn't anyone speak up then?

Nifong- So ladies and gentlemen of the grand jury we showed her 6 line-ups and she could not identify anyone. We showed her some other pictures of the players while looking for witnesses and on the 7th try in what was not a proper line up she picked these guys out. I ask that you indict these men based on this evidence alone.

Anybody buying that?

Now, it's important we know what lies were told and who told them to secure these false indictments!!!

I believe that Nifong, Gottlieb, and Himan all lied to the grand jury and need to be prosecuted.

Ex-prosecutor says it very well: this is a dishonest report, and it is a crime to cover up a crime. So, in the end, we see the police giving us the "blue wall of silence" while they lie and break the law.

I have been following this case in detail for a long time and had no idea that there had been 6 bites at the apple for line ups before the 7th which had no purpose or result other than to frame innocent people.

The report does not mention that the responding officers thought that Mangum was not credible. It also does not mention that Kim Roberts told the police that the rape claim was a crock. They also knew about Mangum's psychological and dependency issues, not to mention that she was a hooker rather than an honor student and working mother.

Given these serious problems, then the case really hinged on the medical examination and the DNA evidence.

Since the examination and the DNA evidence demonstrated that no physical and sexual attack took place, then we should conclude that the case lasted 13 months because DPD and Nifong wanted it to continue.

At this point, it would be nice if one or more of the grand jurors broke their silence, given the high probability they witnessed the commission of a dastardly crime in order to induce their fair-haired indictment.

I requested Chief Chalmers concentrate on 3 very specific areas; 1) define the roles and responsibilities of the Durham police department vis a vis the DA in this investigation, 2) address concerns related to the April 4th ID process and 3)describe our investigative efforts to uncover exculpatory evidence in this matter.

**The portion of Chalmers report on the police search for exculpatory evidence encompasses 1 1/2 pages and contains mostly the notes of a police officer. Basically he says, we asked for evidence and they didn't give it to us.

This is Barney Fife reporting on the Keystone Cops if I have ever seen it.

In my opinion, this report serves as a sufficient basis for the State of North Carolina to suspend the formal incorporation of Durham as a municipality. I as a North Carolina taxpayer not living in Durham (to the extent that there are residents of Durham contributing to the state's tax base) should not be required to cosign, underwrite, subsidize or otherwise deplete my State's tax base with the liability that may arise from permitting the local governments of Durham or Durham County from continuing further business.

Blaming the defense for not procuring acquittals sooner? KC DO NOT WRITE A FORWARD TO "UNTIL PROVEN INNOCENT". THIS STATEMENT IS THE QUINTESSENTIAL (OR SHOULD I INCORRECTLY SAY PENULTIMATE?) EMBODIMENT OF THE TITLE OF YOUR BOOK!!!!!!!!!!!

This comment from 5:26 is not only the funniest so far, it's also absolutely eviscerating:

Anonymous said...If the DPD supposedly couldn't get exculpatory information from the attorneys, why didn't they just get it from the newspaper? Are they saying that they got all their information from the Herald-Sun because they didn't have 35 cents for the News & Observer?

KC, you should ask when they plan to answer the "ultimate" question: why did the Durham PD make a sustained, concerted effort to aid and abet Mike Nifong in his attempt to wrongfully convict the LAX students despite the evidence (or lack thereof)?javascript:void(0)

I did not expect an honest report from Chalmers and Baker because they are facing multi-million dollar lawsuits. Certainly an independent investigation is warranted.

What suprises me is that they did not do what most everyone expected-- blame Nifong. The only tangential criticism of Nifong in the report is the description of how Nifong went directly to a grand jury to avoid a probable cause hearing.

The report does seem to falsely attack the players and their lawyers for not cooperating-- an odd tactic of blaming the victims for police incompetence.

The report does not address many of the questions Blog Hooligans have raised-- among them issues about Gottlieb and Himan's actions before Nifong's involvement, the lies in the applications for search warrants and the non-testimonial identification, the interactions between Gottlieb/Himan and Duke University Medical Center/Tara Levicy, the failure to identify the sources of DNA in Crystal's panties and rectum, andthe failure to interview key witnesses for weeks, if at all.

They have tried (not very well) to address 3 issues (lineup, who led the investigation, and exculpatory evidence) but have not addressed the big picture.

Durham PD did not do a credible investigation, because if they had done so they would have concluded this was a hoax. Top police officials were still backing Nifong until recently after the Attorney General took over. They dare not contradict Cooper's innocent verdict, but in affirming that this was a miscarriage of justice they fail to admit their incompetence.

Durham PD did not do a good investigation; they let Nifong run it and did not act as a brake on the train.

Regarding the lineup, Baker gives a half-assed apology that the lineup was used to target Dave, Reade and Collin, but then makes the unbelieveable assertion that Gottlieb went into the April 4 lineup with the intention of Crystal NOT identifying her attackers. What did Nifong and Gottlieb expect her to do?

Their attempt to make a distinction between a lineup to determine witnesses as opposed to attackers is disingenuous at best, especially since Crystal had participated in previous lineups where they could have asked her who was at the party.

Regarding their claim that the defense attorneys didn't give police exculpatory evidence, Baker/Chalmers are trying to make a false distinction-- the lawyers gave or tried to give exculpatory evidence to Nifong but didn't give it to the police.

First, as Jim Cooney pointed out in his statement, the police DID receive exculpatory evidence from the defendants.

However, I thought that the police and Nifong were operating together under Nifong's direction in this case. Did the attorneys need to give duplicate copies-- one for Mike Nifong and the other for Mark Gottlieb? Were Nifong and the Durham PD on the same or different teams?

Seccond, it was the Durham PD's responsibility to investigate and get evidence, not just the defense.Of course, Durham PD, like so many others, twisted the presumption of innocence in this case.

AG Cooper said NO fillers were used in any of the photo lineups. But Chalmers' report says fillers WERE used. At least that's what I thought Chalmers said - until I squinted really carefully at his words and suddenly realized - ohmigod! - all of the 'fillers' were Duke lacrosse players!

Damn, Chalmers has just given the middle finger to justice! And no, that does NOT mean 'good things are happening in Durham'.

Even assuming that the defense attys did not cooperate with the DPD, they were correct in such a choice. Let's not forget that they tried to intimidate an alibi witness. Also, remember how Nifong changed his timeline? These people act as if people should have taken on faith their honesty. Who in their right minds would have done so?

Why is Patrick Baker behaving as if he's a member of the Police Dept? Shouldn't he be beholden to the City Council only? Why did he restrict the PD investigation to just those three issues when there are so many more that needed to be addressed? Why was the investigator note cited on page 12 written in Nov, some six months after the indictment? At that point, there was already exculpatory evidence all over the media, but did they ever mention to Knifong that maybe they have the wrong guys? If they were so truthful, did they ever put the brakes on Knifong? Re the photo lineup, both the investigators and Knifong should have known what's considered and not considered admissible in court. In the real world, if you do something that's different from the approved SOP, you're required to file an exemption, state a rationale, and get an approval from a senior manager. Apparently, this policy is non-existent within the Durham PD. Maybe it's too much work. I don't know. Only human lives are at stake after all.

KC when you market your book will you have a dvd or web page that gives all the relevant public documents, court filings, and video clips to give a full picture of this ca-ca? Plus all of DIW? There is no way anybody could get the full flavor and smell of this without all that, particularly the abuse of language. This is all boggling to this other."DUKE- The "OTHER" University" new slogan for Duke marketing types.88BS88BSSNL should have someone come on and read Farrad verbatim.

I'm confused: if the police did not knowabout exculpatory evidence, than why didthey "interview the cab driver"?

Such an argument can be so easily ripped toshreds in court: why would the boys want topresent further exculpatory evidence to the DPD after the DPD attempted witnessintimidated by picking up the cab driver on a five-year old bogus charge?

If there was any shred of doubt whatsoeverwhether the defense attorneys plan to file a civil lawsuit against the DPD, there should be absolutely no doubt now.

Is there anyone in either the DA's office or the DPD that understands even just the basictenets of our legal system?

Anonymous 6:27 said......KC DO NOT WRITE A FORWARD TO "UNTIL PROVEN INNOCENT". THIS STATEMENT IS THE QUINTESSENTIAL (OR SHOULD I INCORRECTLY SAY PENULTIMATE?) EMBODIMENT OF THE TITLE OF YOUR BOOK!!!!!!!!!!!::GREAT point and your statement should be also be included.

I can't help but wonder if Precious after the 3rd try at identifying bad guys, decided that she had better find someone to finger or she was going to make that trip to the police station forever. Parking expense and Baby Sitters are expensive.

There are so many young students at Duke who look forward to offering support to sexual assault 'victims' and who would gladly offer support and help for the 'victim' in identification the bad guys...and then help keep them guilty ...until they are proven innocent.

Precious should tell us about her new friends and all about their many offerings of support. ::GP

KC brings up some valid points, but at the risk of being thoroughly blasted, let's take a devil's advocate position for a moment:1) Durham's PD initial response of not believing the accusor's story changed when the SANE nursed advised investigators her injuries were consistent with sexual assault. We can criticize those findings all we want in terms of her qualifications or agenda, but she is supposed to be the professional so shame on her not Durham PD. Why didn't the attending physician initially speak up? 2) It is not unusual in a high profile case for the DA or an assistant to be directly involved. Just look at the Jon Benet Ramsey fiasco for proof of that. 3) The last "line-up" was conducted at the direction of Nifong. Durham PD reported the results and procedure accurately. It's because they reported it accurately is why it's been so criticized.4) It was Nifong who decided to use the results of the flawed identification procedure and present it to the grand jury.5) It was Nifong who decided to rush the case to the Grand Jury before the primary election.6) It was Nifong who refused to meet with the defense attorneys regarding exculpatory evidence. It's also Nifong's job, not Durham PD's to dismiss the case when the exculpatory evidence is found.7) This report by the City Administrator/Police Chief is clearly a CYA document.I'm sure it was reviewed by a legion of attorneys before it's release.It appears they are utilizing the tried and true "we acted in good faith" legal argument. Only time will tell if it will work.

just an idea: Duke3 can buy forged social security numbers and drivers licenses for a few bucks. They could use names like Pablo and Juan.

That way it would take about 24 hours until FBI and US attorneys to establish martial law in Durham. Gonzales may be accused of many things, but questioning law breaking illegals named after Pablo is not one of them.

Duke3 should "de-legitimize" themselves. By de-legimitazing yourself you don't have to pay taxes every year (even the amnesty bill suggest you pay taxes only 3 years in 5) plus other freebies and full protection of DOJ. Sounds like a pretty good deal.

1) Durham's PD initial response of not believing the accusor's story changed when the SANE nursed advised investigators her injuries were consistent with sexual assault. We can criticize those findings all we want in terms of her qualifications or agenda, but she is supposed to be the professional so shame on her not Durham PD.

The SANE nurse in training was not yet a professional. It is the Durham PD that is supposed to be professional. Regardless of the findings, the Durham PD should have contacted the examining physician.

What I find most ironic, perhaps, is the fact that the Democratic Party controlled the Southern states for decades, including those during which Blacks were struggling for their basic rights. Now, Blacks wholeheartedly embrace the Party which was happy to maintain them in a form of servitude - and continues to do so by means of the whole cult of victimhood.

This is the Party of North Carolina politics, of Nifong, of the DPD. The Party that desperately depends on the Black vote. This is the biggest scam on the planet. What did you expect from this crowd? Honesty?

What can an average working class Durham citizen do to demand that our city council open a real investigation into DPD and its activities? Is there an email address to write to? Is there a petition to sign?

A New Jersey lawyer asks why Baker and Chalmers aren't being cautioned to remain silent. Their "report" seems designed only to add to the potential claims that could be asserted in litigation against the City and County of Durham and the various individuals involved in the Duke Lacrosse hoax.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review